Offutt v. United States
534 A.2d 936
D.C.
1987
Check Treatment

*1 Rutledge, dissenting trial court. Justice in ing the conviction. decision in Devore Michelson, supra, expressed his concerns majority’s decision in this case let enough, solution: “Nor is it through about this in forbids the back door what McAdoo my judgment, to trust to the sound discre- through front, for reasons judges protect are, view, tion of trial against the defendant which specious. It is time prosecution. of the excesses To do for the en banc court to build a new struc- effectively they this need standards. None ture. ruling....” are under the Court’s 494, MACK, 335 doubts, 69 S.Ct. at 227. These NEWMAN, FERREN, BELSON, TERRY, share, I amplified which are in ROGERS, STEADMAN, involving cases juvenile disclosure of cases, matters. In such prejudice PER CURIAM. placing jury before the otherwise inadmis- propensity compounded by sible evidence is ORDER divulging that of conduct committed as a appellant’s petition On consideration law, juvenile which the for reasons of banc, rehearing opposition en policy, protects public sound view. thereto; appearing majority and it We have not seen fit to leave to the trial judges of this court has voted court’s discretion the admissibility juve- banc, rehearing grant petition en impeach nile records to general a witness’ is Smith, credibility, 993, supra, see 392 A.2d at impeaching nor their use in a defend- appellant’s petition for ORDERED that McAdoo, ant’s character witness. See su- rehearing granted and that the en banc pra, 515 A.2d at 418. I see no reasoned opinion of December basis for a different rule when the issue is hereby are vacated. juvenile adjudications, wrongful but the the Clerk FURTHER ORDERED underlying acts or arrests them. argument shall schedule this matter for course, recognize Of that the interest in sitting en as soon as before the business of the court court banc confidentiality juvenile proceedings permits. Counsel Devore, not absolute. supra, hereby provide copies ten directed to Alaska, at 94 S.Ct. Davis the briefs heretofore filed to the Clerk or before March But it strong countervailing takes a interest Supreme overcome it. The Court has ruled protecting that the interest in the confiden- tiality the juvenile give records must way to Right defendant’s Sixth Amendment conduct effective cross-examination showing a witness’ bias. Id. But Smith, we drew juvenile the line on the use of convictions OFFUTT, Appellant, Eric impeach, holding they may that while bias, they may used to show not be used to impeach general credibility. the witness’ STATES, Appellee. UNITED law, “In as in this all areas of the legal principles supporting our decisions must be reasoned and consistent.” Towles Appeals. of Columbia 1987) (en banc) (Newman, J., dissenting). 5, 1987. Nov. Submitted If confidentiality juvenile the interest in 22, 1987. Dec. Decided proceedings outweigh is sufficient to a de- right impeach general fendant’s witness, credibility certainly of a it most outweighs prosecution’s right to “test credibility” reputation of a defendant’s McAdoo, supra. principles witness. supporting confidentiality justify non-dis- juvenile closure of convictions for such purposes, they must also non-disclo- wrongful underly- sure of the act or arrest *2 erred in its refusal to

trial court physical evidence found the affirm. We pretrial suppression from a Evidence hearing that a clerk showed station phone call Third District received a a.m., infor- approximately 3:30 from an at mant, who The in- number. informant identification “Tree” clerk a man named formant told the floor of drugs on the ninth Street, Towers, 1221 M N.W. Claridge appellant as black informant identified tall, male, 3 inches approximately 6 feet wearing pounds, weighing about 240 beige shorts “Georgetown” shirt and red apron. The informant underneath brown appellant had a .22 caliber automatic said in the crotch of hidden gun and narcotics The information his shorts. over informant was transmitted radio, Loepere re- Kevin and Officer 3:50 approximately sponded to the call a.m. building, lobby

Upon arrival officers in Loepere met two Officer The three officers took backup unit. the ele- the ninth floor. When elevator to seen opened, appellant was doors vator offi- hallway, but the three standing in the hesitated, fearing appellant was arm- cers ed, doors closed. and the elevator lobby, where Offi- to the elevator returned D.C., Alford, Washington, Kenneth the other two Loepere remained while cer court, brief, for by the was on the pointed side the rear and to check officers went appellant. building. When apartment exits to again, appellant opened doors elevator diGenova, Atty., and Mi- Joseph E. drew his service Loepere emerged. Officer Abrecht, Farrell, Ter- Mary Ellen chael W. to turn revolver, appellant instructed Feitel, Asst. Keeney ence J. and Robert the wall. place his hands around and D.C., Washington, were on Attys., member of P. Wayne Officer brief, appellee. unit, commenced returned and backup PRYOR, appel- Chief pat-down while Officer TERRY, began Walker bay. NEWMAN Officer lant at neck, work- top appellant’s frisk at the As Officer body. way down the ing Judge: body check the lower started to Walker “and his left hand area, moved appellant was by jury, After a trial area of into crotch” going down (PCP) started phencyclidine possession of victed of physi- Walker tried his shorts. intent to dis- (marijuana) with and cannabis wall, hand to appellant’s 33-541(a)(l) (1987 cally return Code D.C. tribute. § struggle A brief appellant refused. but appellant contends appeal, Supp.). On ensued and was thrown to the the seizure was reasonable. Curtis v. ground. saw a States, supra, vit- pill containing amin fall bottle tinfoils Ohio, supra, U.S. at appellant’s during struggle. hand 1880.2 marijuana The tinfoils contained laced with We conclude that the trial court smelling PCP. After the chemical odor properly denied sup motion to PCP, from the arrested *3 since, press on of the basis the informant’s gun appellant.1 No was discovered on tip, subsequent and Officer Loepere’s pellant’s ob person. Appellant’s motion to servation, had articulable by the evidence was denied grounds suspect to possessed judge grounds trial on that the officers suspicion” weapon.3 narcotics and a stop ap- had an “articulable The to information pellant relayed to and a reasonable basis to make appel identified attire, preliminary weapons. search lant’s reasonably appel described weight and, height, lant’s and impor most In justify investigative order to a limited tantly, indicated location in the seizure, police “the officer must be able to building of location point specific to and facts articulable suspected weapon Given which, together taken with infer rational circumstances, these also find we it was facts, reasonably ences from those war reasonable for to display rant” the intrusion. Curtis v. United weapon confronting suspected when States, 469, 1975) (D.C. (quot 349 A.2d 471 armed dealer early alone morn Ohio, Terry ing 21, v. 1, 392 U.S. hours, ing and such action does not see also (1968)); stop itself transform a Terry into an States, Grovesv. United ar 602, 504 A.2d 604 States, rest. Davis v. (D.C. United 1986)(a 498 A.2d quantum lesser of evidence is 242, (D.C.1985); 245 United States v. needed suspicion to create a reasonable to White, 289, 294-95, 208 investigative U.S.App.D.C. an stop 648 than estab denied, 29, 34-35, probable arrest). 424, lish cert. cause to F.2d 454 facts U.S. upon 424, (1981) (“the relied must be 102 70 233 sufficient to allow the S.Ct. L.Ed.2d police to reasonably officer display may, conclude in use or of arms but does not light of his experience “that necessarily, stop arrest”). criminal activi convert a into an ty may be afoot.” Curtis v. United Accordingly, appeal States, supra, 349 A.2d v. Affirmed. Ohio, 30, S.Ct. at 88 assessing 1884. In reasonableness NEWMAN, Judge, dissenting: seizure, police judged officer must be Gates, Illinois v. against 213, In “objective standard,” is, 462 an U.S. 103 that 2317, (1983), whether police the facts S.Ct. 76 available to L.Ed.2d 527 the Su- officer at preme the moment of two-prong seizure warrant a Court overruled the test man of reasonable caution in the in Aguilar previously belief that had enunciated Appellant States, 459, any (D.C.1971) does not raise issue as wheth- United 460 (when probable er there was cause for his arrest fol- officers received information of man sit lowing gun, ting duty disclosure bottle and car with a their to make investigation report; the smell of PCP. when de scription plates proved of car and license cor situations, comparable consistently In we have rect, they justified taking were further inves investigatory stop can make an tigative steps). See also United States v. of an if individual have reasonable articu- 376, remand, (D.C.1972), 378 304 after suspicion activity lable that criminal is afoot. denied, 1007, (D.C.), 290 A.2d cert. 414 U.S. 94 States, See Lawson v. United 368, 360 A.2d 38 (1973); 38 S.Ct. L.Ed.2d 245 States 1976) (opportunity investigation might well 788, (D.C.1970); Frye, 271 v. A.2d 789 Adams evaporate delay prohibited if Williams, 143, 1921, v. 407 92 S.Ct. 32 crime, upon acting reports except 612 L.Ed.2d himself, eyewitness where citizen or if presents he seeks Loepere's cruiser or 3.Officer observation precinct report); description given house make Davis v. matched the informant.

939 Texas, erwise, any S.Ct. 12 demonstrated 378 U.S. 84 per- Spinelli (1964), knowledge, accurately describe a 723 L.Ed.2d location, dress and cou- S.Ct. L.Ed. son’s mode of (1969), probable claim crimi- ples description to determine cause with a 2d (1) two-prong conduct, police, upon verifying search. The test was nal (2) knowledge, report totally informant’s basis innocent elements facts to providing sufficient establish the refuse to probable cause to search. have veracity reliability informant’s of his holding. fourth amend- join such satisfy report. there was failure protects drug ment dealers. probable prong, then there no either and me. protects you Gates, In cause. “totality of

adopted a the circumstances” do, As bound we have

test. we are regard,

followed Illinois Gates. In this

however, it crucial to remember what anonymous An involved that case.

was was

handwritten letter sent to accusing dealing. the Gates of HILL CAPITOL RESTORATION planned letter recounted Gates al., SOCIETY, INC., et trip buy drugs. Florida to set future Petitioners, transportation forth the modes of trip, would on the Gates take some future details what would do Florida BOARD OF DISTRICT OF COLUMBIA how return Illinois. The would ADJUSTMENT, Respondent, ZONING as police surveilled the Gates as well ducting investigations. The other surveil- measure, confirmed, large pre- lance Group Property Limited Historic D.C. conduct. diction of the Gates’ al., Partnership, et future Intervenors. Gates, supra Illinois J., (Stevens, 2360-61 dissent- 103 S.Ct. at police thereupon ing). obtained war- of Appeals. of Columbia Court and conducted a search. rant Argued Oct. Here, apparent- That is not our case. Decided Dec. informant, giving any ly paid knowledge, tells the how Offutt is dressed, found, where he drugs dealing while armed with a

he entirely The first two items were

pistol.

innocent, i.e., location; it mode of dress and only while the third —

armed, sinister. The veri- which was entirely inno- which was

fied There

cent—mode of dress location. reported nothing to corroborate the important, keeping Most conduct.

criminal Gates, the informant

in mind significant predicted any

here had not fu- police corrobo- ture conduct which the

rated.1 case the search in this

To sanction informant, anonymous oth-

say where an arrest, Terry stop. colleagues, there was an think 1. Unlike